July 14, 2009

If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?

I think religious diversity is particularly important, because it has more to do with the individual's mind. It's part of one's thinking, and legal analysis is thinking. Race and ethnicity might have an effect on your thinking — in that it may involve various personal experiences and feelings of identification — but it is not a characteristic that you have by deciding to have it or by believing you have it. Religion is different.

Strangely, though, we are circumspect on the subject of religion. A lot of people seem to think it's wrong to talk about the number of Catholics on the Court, or to state simple facts like: Once Sotomayor is confirmed, there will be 6 Catholics, 2 Jews, and 1 Protestant on the Court. Perhaps this is because it is a quality of mind, internal to the individual. That makes it seem like a private matter. And who knows whether a given individual remains devout in the religion of his or her childhood.

Is it rude to ask? Is atheism still a secret? Why not be open about it, especially when we are inspecting a Supreme Court nominee? This is a mind that is going to be imposing its thoughts on us, probably for decades.

68 comments:

So there are a bunch of Catholics on SCOTUS. The worst sort of non-diversity is that they are all a bunch of wishy-washy English, history, and government humanities majors. Not one among them has even got an advanced degree in a near-science like economics, let alone a degree in science or math.

a) We could be certain that, even if a person declares themselves to be of a certain faith, they subscribe to all of the tenets of that faith, as opposed to where most people find themselves: a la carte believers. For example, a Jew and a Catholic might actually share the same moral belief system if you take into account their level of orthodoxy, scuh that an apparently "religiously diverse" court would wind up with very little to no daylight between the respective members.

b) That it was a tertiary (or even lower order) consideration behind their willingness to put the Constitution and American law ahead of their religious beliefs and their overall judicial philosophy: both of which are of far more important and relevant.

I guess the long and short of it is that there are far more ways to ensure a diversity of "experiences" than blindly following some kind of formula about the standard classifications (race, gender, religion, etc.) To the extent that they should be considered at all, they should fall far behind other measures which can assure actual diversity rather than simply selecting an otherwise uniform court differentiated primarily by the appearance of the faces sitting on it.

Nice line Professor: "this is a mind that is going to be imposing its thoughts on us, probably for decades." The American determination that all religions appreciate being left out and seen as as irrelevant to secular government work is an act of will. The assumption was that all sane men had a faith and would respect the faith traditions of others. In early history here in the New World the protestant-catholic divide from 100 years of wars in Europe was once hard to bridge, and must still be worked at occaisionally (as I discovered yesterday). The Joker in the deck is of course the Atheist-Humanist creed recently declaring that everyone has well known legal rights from a reinterpreted 1st Amendment to be absolutely free from being irritated by religious expressions that come out of another person's faith in scripture. So what is the solution to the new hatreds we see arising? IMO, ruthless free speech IS the answer.

The medieval Roman church is the source for the modern appellate court system.

Ann, I see the benefit to your position, but there is one major concern you haven't addressed. We have an explicit prohibition against religious tests for office, and this would skirt the penumbra, so to speak. Now what you're suggesting wouldn't really qualify -- it seems like you just want to inquiry into the nominee's religion's beliefs as a way to get a better understanding of the individual's though process and value system. Nonetheless, it makes me a little uncomfortable because it skirts the penumbra of a religious test. Can you imagine how much less plausible your suggestion would be if the nominee was a Mormon or Muslim?

The advantage of your idea, getting a keen idea of the nominee's thoughts, can be gleaned in other way. If the Senators weren't so keen on getting their talking points in, the World's Greatest Debating Body might be able to do exactly what you want.

The current system doesn't generate the answers you seek. Your plan could, but it faces the same implementation problems that currently bog down the hearings. There is no assurance that we'd learn anything new, and the questions your suggesting would introduce another litmus test awfully close to the kinds we've supposed to have banned. We're not supposed to care about race or religion; just because we've broke the rule to get our minority quotas doesn't mean we need to do the same to get an atheist, muslim, and new age flakeball on the Court.

"The Joker in the deck is of course the Atheist-Humanist creed recently declaring that everyone has well known legal rights from a reinterpreted 1st Amendment to be absolutely free from being irritated by religious expressions that come out of another person's faith in scripture."

Uh, no. Just from being forced to participate. There are fringe atheists just as there are fringe theists. Quite a few theists agree with Bush Sr.

Oliganicella...I said, "Faith in scripture".The 1st Amendment is to protect Free Exercise and Free Speech, not Freedom From Exercise and Freedom from Speech. The Pilgrims got in their claims to those first.And Free Speech will always be offensive to somebody.

In any case, I think it's more likely a cart before the horse or vice versa sort of thing anyway.

Religion concerns our thinking but I would argue that, similar to language itself, it has more to do with how we think than what we think. Catholics, more often than a lot of Protestants these days, tend to value analysis over emotion, and precision over inclusive warm fuzzies.

I hadn't known that so many Catholics are on the court, but I'm not surprised.

"Yet here's the irony. The same people who feel no compunction in trying to use the Catholicism of an Alito or Pryor to raise suspicions about their suitability then cry foul when anyone demands to know the basis of the moral convictions and personal feelings of someone that a liberal Democratic president is trying to place on the Supreme Court."

If the indifference to Ms. Sotomayor's Catholicism were truly a sign of a new respect for the "no religious test" provisions of the Constitution, that would be something to celebrate. But in the unlikely case that this "wise Latina" ever comes to see the legal wisdom of overturning Roe and returning abortion to the democratic process, we'll be reading a very different story.

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Do conservatives say irony where a liberal would say hypocrisy?

Would it be ironic if Sotomayor turned out to be a conservative, replacing Souter who turned out to be a liberal?

Anyway, I'm not sure who if anyone has said it would be inappropriate to ask Sotomayor about her religious views.

Ann raises an interesting point that religious beliefs presumably have a much greater effect on how judges decide cases because it is a part of their thinking, than merely their color or nationality which really should not greatly affect their thinking. Virtually everyone ignores the issue because the media and the public are so ingrained with desire to stay away from the issue of religion and accept the mythic "separation of church and state."

I have often thought about Catholic judges (or really any judges with a belief in some type of post death judgment by a God) holding the right to abortion on demand. In one sense, it is about the clearest example of a judge separating his religious beliefs from his judicial holdings.

The more interesing part to me is to speculate about what those judges actually think when they privately consider the possibility of being judged one day by God. Can they possibly have such trust is the political separation of religion and the law that they think God will accept the same distiction? Do they fear how God will judge them? Or, if Catholic, do they rely upon the sacraments of confession and last rights as a get out of jail card? Or, are they petrified on their deathbed of the pending judgment of God? [I think they must be, but we are unlikely to ever know.]

The justices have a nearly singular adult experience of going to school, clerking, lawyering and judging. That is not a normal, representative nor diverse group and probably never will be. This question is theater.

If persons successful and accomplished in the areas of science, medicine, industry, or other pursuits are not qualified, then maybe this judging thing is just too much inside baseball, and not enough human endeavor or experience, and thus unjust by nature in judging the claims among such people and their truly diverse arts.

Anti-Catholicism has a long and distinguished history in the English speaking world. Reread Oliver Twist and you will find that the arch villain is not Fagin but Monk. Monk is a kind of Jesuitical, Guy Fawkes figure who pulls all the strings. He represents the Whore of Rome, and even the Elders of Zion are caught in his web. The Duke of Wellington was the greatest British hero since King Arthur. When, as prime minister after the war, he saw to it that the propertied Catholics in Ireland were given suffrage, he was pilloried as a traitor. He had to fight the only duel of his life to defend his honor. In this country, Catholics generated the same suspicion and distrust. The Know Nothing Party was not all that reactionary. They were in favor of woman's suffrage, and some of its members were abolitionists. What they objected to were immigrants, and especially Catholic immigrants. In the early 20th century, hostility to Catholic Slav and Italian immigrants inspired many northerners to join the Klan....Well anti Catholic bias is dead and gone, but let's not congratulate ourselves on our tolerance. I think that bias is one of the coefficients of humanity. However different times bring forth different prejudices. Evangelical Christians now inspire more distrust than Catholics--at least in the minds of the media. They believe, with some justification, that Catholics like Sotomayor take the teachings of the Church with a grain of salt but that Christians like Palin fundamentally believe all that Bible stuff. I agree with Jim's post (10:55PM). Many other aspects of identity trump Catholicism......I think it is worth noting that it will be a cold day in hell when someone with religious beliefs similar to those of Palin is appointed to the Supreme Court. If you're gonna go the diversity route, why not a few Bible thumpers? They represent a considerable portion of America.

You also said 'the Atheist-Humanist creed', which was my point of contention. It ain't.

Be as religious as you want and utter whatever beliefs you wish, I don't really care although I may disagree. I will, however, contend when stupid crap like atheists don't have morals or shouldn't be citizens is promoted.

I don't recall you doing that, but others here have. So the hell has one of our presidents.

It is true that judges tend to lead very insulated and to some extent lonely lives. I don't know if that is good, bad or indifferent to the administration of justice.

I did enjoy that Sotamayar today rejected Obama's nonsense of empathy being a criteria for a judge. It is amazing that the media allows Obama to get away with such nonsense without serious scrutiny. The judge selected for empathy has rejected the application of empathy to the job. Don't you think the Post and Times would have that on page one if it was a republican situation?

Which president attacked atheists? I always found it somewhat odd, but okay, that President Bush always included some deference to non-believers when he talked about issues of faith.

I also found it interesting that Sotomayor spoke so strongly in her prepare remarks, but was so stumbling and weak in answering questions. I'm sure on the bench she was quite strong in asking questions (many prepare before the argument), but now on the other side of the exercise, she is not any good.

By the way, at least politico is highlighting her disagreement with Obama. Maybe I was wrong and the MSM will highlight it, finally.

I keep stumbling--no, stuttering--no, stumbling over the whole "**racial**" nomenclature/issue, particularly with respect to Latino/Hispanic etc., because--though you'd never know it from most discussions, here, there, everywhere, and even in TeeVee 'n' radio 'n'print--bunches of people in real life fall into that category who are *also* of different races, not to mention mixed backgrounds, not an unusual thing in a whole number of relevant countries. I sincerely don't understand why so few people point out this reality.

As to one of the larger questions posed in this post (or perhaps a number of them), all I can say is that what a whole lot of things in life--for good, or ill, or both-- boils down to is "tribalism" ...

... another term which encompasses a whole lot more that what people typically want to consider.

diversity..the antithesis of meritocracy. I gag when I hear the word. I see signs at work and the YMCA extolling it as the highest form of public virtue. I'm surprised the Boys Scouts haven't adopted it: "Trustworthy, Loyal, Helpful...Brave, Clean , Reverent, and Diverse"It is a PC cover for balkanization and the elevation of mediocre.

traditionalguy : The Joker in the deck is of course the Atheist-Humanist creed recently declaring that everyone has well known legal rights from a reinterpreted 1st Amendment to be absolutely free from being irritated by religious expressions that come out of another person's faith in scripture. So what is the solution to the new hatreds we see arising? IMO, ruthless free speech IS the answer.

Do you see ruthless free speech on the part of Christians as a way of combating Atheist-Humanists and restoring godliness to the country? Because if you do, I have some bad news for you, the Atheist-Humanists are the weakest, most watered down Atheists you can find and I'm pretty sure you'd be fighting a straw man.

Jason...A social ostracism imposed for using certain words in public has a long tradition of its own. For example the Baptists, God bless them, will get on to you for the use of the most mundane of vulgar words, and see faith issues in their attitude. That is fine and dandy, and we all just go along to get along. It took a Lenny Bruce to expose the power being misused in that kind of outlawing of free speech. The power to do that to people has now been taken up against christian speech. We may need a christian Lenny Bruce to open up the tolerance for outspoken belief in "supernatural mumbo-jumbo" in front of children and our so easily offended public authorities. Remember, that until reversed,the Ricci case of recent fame was simply a holding that since white men being promoted caused a Legal Controversy (as it does because Congress says so), that therfore the white men's rights can no longer be legally protected. That same mechanism is now being put into use to hold that speech which includes assertions from religious faith are no longer legally protected. You don't have to be an Atheist to go along to get along with this pressure. That was also one big reason that the Pilgrims came over to the wilderness, so that they and their children could live in a new place free from such pressure. And no, they were not quitters.

How important religion is depends on the person. I don't see how anyone could consider Catholicism to be an important part of one's values and thinking and still be pro choice. For some people thier religion defines them for others it doesn't.

The bigger problem with diversity on the Court is that they are all Ivy League educated former appeleate judge members of the Con Law priesthood. There was a time when Supreme Court Justices were practicling lawyers or politicians. That seems to have ended. The way to the Court seems to excusively be go to Harvard, Yale or maybe Stanford, write on law review, clerk for a well known justice, work a few years as some kind of a government lawyer, use your political influence to get appointed to the bench and then wait for your appointment. the idea that the Supreme Court is the ultimate arbiter of federal law and not just Constitutional Law never seems to enter anyone's mind. Neither does the idea that someone who didn't attend one the three law schools mentioned could have anything interesting or important to say.

You want diversity on the court? How about someone who had a career before law school and went to a good state or lesser known private law school and went on to practice as a defense attorney or work a day corporate attorney and then maybe had some experience in politics. How about someone who understands how the real world works rahter than nine people who have spent their lives in academia and on the bench? That would be diversity.

If it weren't racism, it would be something else that would balkanize the population.

Take a look at any of the extremely homogeneous populations of a developed nation (there aren't many). For instance, there are nearly 50 million South Koreans. Almost 99% racial homogeny with the exception of a smattering (roughly 20k) Chinese.

Guess what they find to fight about? What region of the country you were born in. They're as worked up about that as we get about race, although SK doesn't have an equivalent of the USA's political correctness, so they tend to just offend each other wholesale.

the Atheist-Humanists are the weakest, most watered down Atheists you can find and I'm pretty sure you'd be fighting a straw man.

Combine that with the fact that just about every single self-described "atheist" I've ever debated turned out to be a technical agnostic. In my whole life, I've only ever talked to three true atheists.

traditionalguy said... Oliganicella...I said, "Faith in scripture".The 1st Amendment is to protect Free Exercise and Free Speech, not Freedom From Exercise and Freedom from Speech. The Pilgrims got in their claims to those first.And Free Speech will always be offensive to somebody.

Article IV, Section 3 of the U.S. Constitution states, "no religious test shall ever be required as a qualification to any office or public trust under the United States." To me, that basically says that it would be wrong to apply some kind of balance or test to nominees for the position of Supreme Court Justice.

But going further than that, you would have to prove that there was a benefit to a country founded on a Judeo-Christian moral code in having atheists, muslims, hindus etc and how beliefs that (in some practices) require forced conversions would continue to protect the minorities views.

I also agree with what Jim said at the top-- once we state we're going to have a test, how would one determine actual beliefs? Would hearings devolve into discussion of doctrine and would the U.S. Senate be one that would be sitting in a place to judge doctrine?

Seems to me that would be much closer to Congress establishing a religion then it is having a ten commandments monument in a court house.

I like that Annie basically has said the whole thing is loopy delusional thinking:

"Race and ethnicity might have an effect on your thinking — in that it may involve various personal experiences and feelings of identification — but it is not a characteristic that you have by deciding to have it or by believing you have it. Religion is different."

Right. You "decide" to have it or not - there's no compelling evidence for it. You "believe" it's right - there's nothing to support that idea, though. Just a bunch of childish adults who still haven't gotten over playing make-believe because, sometimes, they're scared of the dark or the idea of themselves dying. (Their fear, and the obsessions it engenders in them, like religious belief and what that causes people to think and do, actually makes life less interesting and my own death more attractive: you folks bore me with your "beliefs", it's all so lame and immature.) The fact the Supremes are almost all Catholics says more about the lousy state of thought in this country than almost any lousy argument those body-eating blood-drinkers may possibly hear.

It's like the older I get the more of a joke it all is.

As supposedly-thinking adults, we really ought to all be thoroughly ashamed of ourselves.

The two have nothing to do with one another. People of different races, creeds, or colors can achieve the same objective ends. That doesn't mean they'll use the same methods and/or thought processes. It's actually fairly easy to reward merit, while accepting diversity, simply by accepting whatever mechanism/method achieves the objective. It's also possible, believe it or not, to examine other people's mechanisms and see if there's anything useful in them.

And to the question posed by the post, racial diversity isn't more important. Nor is religious or cultural diversity. To bagoh20's point, the indoctrination/common experiences of training and being successful enough in the the legal profession to rise to the point where one is considered for the Supreme Court is probably a bigger factor and a guarantee that little actual diversity of thought will exist. Outliers usually get discarded early on. The process to get to this point has already weeded out most of the people with obvious, glaring failings of objectivity; everything else is fractions of a degree, nuance, and of course, politics. Outside of language and politics, a poor Latino from the South Bronx has more in common with a poor white man from Oklahoma than Sotomayor, and Sotomayor likely has more in common with John Roberts.

From the perspective of history, the idea of five, and soon six, Catholics out of nine Supreme Court justices is remarkable--and as was said with the election of the first African-American, remarkable in so quickly becoming unremarkable.

Part of what's remarkable is that it's a political favor not asked for. We've had people lobbying for another woman, for an Hispanic, and for some other representation, when was the last time anyone lobbied for more Catholics? We Catholics are gratified, but we're not agitating for this. It's a prominence we aren't necessarily looking for.

Why would that make me feel good? I wasn't complaining to begin with, just stating a fact about my own experiences in the debate.

As far as "deciding" to believe, and I'm not advocating one way or the other, mind you, ask the question, "do you decide when you're in love?" Do you decide when it happens? How strong it is? Who it's for? Most poets (and, ironically, most rational adults with any experience with l-o-v-e) would say no. That there is zero control over the who's and the why's of the enigmatic thing we call love.

Scott M: Combine that with the fact that just about every single self-described "atheist" I've ever debated turned out to be a technical agnostic. In my whole life, I've only ever talked to three true atheists.

Yes, the people who debate are more often apologists for Atheism. Most Atheists don't talk about their beliefs and if they do debate, it's not going to be in the traditional sense.

The Christians with the "you're going to hell" signs would have heart attacks if they saw some of our propaganda.

JAC... The Establishment Clause is not in any real danger today except from Science Fiction cults like the Cold Air Worshipping Cult started by the Prophet Algore which is now claiming the right to be fully established/funded by American government funds.

chuck asked: "Would it be ironic if Sotomayor turned out to be a conservative, replacing Souter who turned out to be a liberal?"

Trey said: "No. It would be miraculous."

As far as I can tell, Sotomayor is neither predictably Liberal or Conservative. She seems to be a Sotomayorist: someone who adheres to the philosophy of Sotomayorism and dismisses any other philosophy as inferior and unworthy of serious study.

The idea, though, that atheists are obvious better thinkers because they reject the irrational is wrong.

In fact, it's a bit like the claim that a person who rejects irrational *numbers* is a better mathematician.

Even if one rejects the idea that there is anything at all true about faith in the supernatural, it is all a very mind expanding mind experiment to, for example, debate the number of angels that can fit on the head of a pin... a metaphysical argument that tears into the concept of existence without mass or physical manifestation and the logical consequences of that. Even if one thinks it is all very silly... who really *cares* and what does it matter if angels are actually trans-dimensional?.. it's a fascinating and fun exercise of the mind.

(In fact... I don't believe anyone ever really DID care about that question. I believe it actually was always a rhetorical question presented as an exercise for students.)

That sort of thing, that sort of argument, exists in the abstract in a way that other arguments do not and the *abstract* is what truly defines sentience.

This is also why I compared religion to language and why learning another language tends to improve unrelated test scores and why learning a language like Latin (or a few others) that encompass concepts that English simply does *not* improves scores even farther.

Obviously... simply belonging to a religion or having faith means NOTHING because few people really bother to think about it, but it does provide an opportunity and exposure for those who are inclined.

Sorry, dude, but we see all kinds of examples, in literature (sp?) and life of people making practical decisions about love - Does the woman with a child go for the guy with the cash or the starving artist? - plus, we're talking about judges: I was mighty impressed recently when a judge told a woman who had let a cultist kill her kid that if the kid came back to life, he'd let her go free.

"She seems to be a Sotomayorist: someone who adheres to the philosophy of Sotomayorism and dismisses any other philosophy as inferior and unworthy of serious study."

I think you've summed up Sotomayor's judicial philosophy better than anyone else to date. Decides on the right answer first. Reasons backwards from there. It's what makes her an inherent danger on the bench.

"The idea, though, that atheists are obvious better thinkers because they reject the irrational is wrong."

In fact, it is no more irrational to believe that there is a God than it is to believe that there isn't one. Both are beliefs devoid of absolute proof one way or the other. For every piece of "evidence" that God doesn't exist, there is a countering piece that He must exist.

Many Atheists are put off by the absolute surety which which people of faith speak about God without even a moment of introspection to realize the irony of their own absolute surety and how offputting it is as well.

As with political ideology being more akin to a clock with opposite ends meeting at the 6 o'clock, so it is with absolute faith. They are both extreme positions which offer perfect moral certitude to those who believe one or the other.

"I would be more worried by the fact that only a handful of law schools are considered qualified to produce a SCOTUS justice."

I concur.

Think, for example, about how differently Kelo might have been decided if the court consisted of justices from western (or even midwestern) states that had attended their state university. One tends to look at property rights in a whole different light when there is a tradition of family property ownership that goes back generations rather than living a transitory lifestyle either largely in rented or transitionally owned domiciles.

You missed the point. Sure, you can make concrete decisions based on love, but you cannot decide when, who, how much, you love someone or not. A person, through no real fault of their own, find themselves falling in love with someone that would be "off limits" and make decisions not to pursue the interest, but then you end up with heart-ache, do you not?

Just as much as you cannot control when, who, how much you love, you can also likewise not control when and how much the pain of loss (in regards to love) will subside.

My point being that you're trying to rationalize something that has alluded rationalization since people started trying to do so. Not the decisions one makes outwardly, but the foundation of feelings that exist, or not, outside of our conscious control.

It is the exact same thing with faith. Its a foundation feeling uncontrollable by conscious rationalization. Sure, it's arbitrary, but there you are (arbitrarily).

Diversity based on race, gender, religion, national origin is a false god and is supposedly illegal. (Do you ever read those human resources posters at work?)The only people we need on SCOTUS are people who believe in and interpret the Constitution as it was intended. I know there is some gray area there but not nearly as much as some want you to believe.

You're all ignoring the real lack of diversity: they're all fucking lawyers.

The Court needs some Philosophy or English Lit profs, or even grad students, if the profs can't be pryed out. Every opinion would be a masterpiece of clarity and logic, completely devoid of dogma or cant.